“I think I am being fired because I am pregnant.”
These 10 little words bring with them a whole host of issues, emotions and challenges. Unfortunately, these 10 little words are something that we hear a lot at Rubix Legal.
Recently we represented a professional employee who was dealing with the repercussions of these 10 little words. Let’s call her Jane. She had worked for her employer for a number of years without any issues. She then fell pregnant and informed her employer, as she was required to do, that she intended to take maternity leave followed by a period of unpaid parental leave.
The initial response from her employer seemed positive. She was congratulated on her exciting news and provided with copies of the company’s relevant leave policies and paperwork to complete. So far so good.
Not long after however, things took a very different tone.
Jane was pulled aside at work and told that her employment contract had ‘expired.’ Having worked for the company for a number of years on a full time basis, this news came as a complete shock to her. “What do you mean my contract has expired” she thought. “Is this because I told you I am pregnant?”
A dispute subsequently ensued as to the real reason why she was told that her employment contract had expired. Had she been mistaken? Had her employment always been of a fixed term nature and she just didn’t realise? Or was there an ulterior motive at play. Was she only being told that her employment contract had expired because she was pregnant and had notified her employer that she intended to take leave later in the year?
At what was meant to be one of the most exciting times in her life, Jane found herself filled with anxiety, stress and uncertainty. If her contract had truthfully ‘expired’ then she would soon be unemployed. On top of that, she would not have a guaranteed job to return to when she was ready to do so. But something just didn’t seem right about all this. The timing of the events was certainly odd. Needless to say, this was not what she had imagined her future with bub would look like.
Jane needed help in understanding what her legal rights were. She needed help with finding her voice in the workplace.
So what exactly does the law say?
Under the Fair Work Act 2009, it is unlawful for employers to take ‘adverse action’ against employees because of certain protected attributes such as pregnancy, sex, family or carer’s responsibilities to name a few.
Adverse action can include things like:
- sacking or making a pregnant employee’s position redundant;
- injuring a pregnant employee in their employment (for example, by denying them the right to take leave);
- altering their job to their detriment (for example, demoting them because they are pregnant or due to take parental leave. Similarly, it can involve the refusal to promote a deserving employee because they are pregnant);
- treating the pregnant employee less favourably than other staff;
- refusing to hire an employee because they are pregnant; or
- generally treating the employee poorly when compared to other non-pregnant employees.
The Fair Work Act 2009 also provides that it is unlawful for an employer to take adverse action against an employee because they have exercised a workplace right, such as to apply for and take leave in relation to the pregnancy.
How prevalent is pregnancy discrimination at work?
While the law clearly provides avenues for affected employees to assert their rights, the problem is that many employees still remain largely unaware of their rights or are too afraid to speak up.
In a report completed by the Australian Human Rights Commission in 2014 (the ‘Supporting Working Parents: Pregnancy and Return to Work National Review’), it was revealed that:
- 1 in 2 mothers reported experiencing discrimination in the workplace at some point;
- 27% of fathers and partners experienced discrimination relating to parental leave and return to work, even when only taking very short periods of leave;
- 32% of mothers who were discriminated against at some point went to look for another job or resigned from their position; and
- 1 in 5 mothers indicated they were made redundant or subjected to a restructure, dismissed or told their contract would not be renewed during their pregnancy and/or when they requested or took parental leave.
Ultimately, the report showed that pregnancy discrimination is still very much alive in Australian workplaces.
Dealing with the 10 little words
“I think I am being fired because I am pregnant.” If you find yourself in a situation where you have said the 10 little words, it is important to act quickly. Here are some of our tips on what you should do.
- Breathe. The most important thing is to ensure the health and safety of you and your baby. Take a moment to check in with yourself to make sure you are both holding up okay. Seek the advice of your treating practitioner and support networks as required.
- Take a step back and examine the situation. Write a factual chronology if you can. When did you notify your employer that you were pregnant? What happened next? Were you treated adversely? If so, how?
- Consider the terms of your employment contract and company policies. Have you complied with your employer’s requirements for applying for leave?
- Gather all relevant information about your pregnancy and your request to take leave. This might include contracts, emails, letters, text messages and leave records, to name a few.
- Seek legal advice promptly. In some instances (such as with unfair dismissal claims and general protection claims) there are strict timeframes that apply. The more time you have available, the more options you will have to consider as to how you wish to deal with the issue.
So what happened to Jane?
Rubix Legal were able to assist her with resolving this workplace issue in a timely, sensitive and fair manner. Thankfully, it meant that she could get back to being excited about her pregnancy instead of spending any more precious energy stressing over her employment.
When asked to comment on her experience, she wrote:
“I highly recommend engaging Nikolina Palasrinne’s services with any employment concerns. Nikolina is extremely knowledgeable, professional, and provides great attention to detail. From start to finish, Nikolina was readily available to explain things in a simple and concise manner, and offered alternatives with honest and upfront expectations. Nikolina guided me through my Maternity Leave issue with great judgement and I cannot thank her enough for her expertise to quickly resolve the issue. Thanks again Nikolina!“